Canada: The Ups And Downs Of Backyard Trampolines

Last Updated: June 1 2015
Article by Cynthia P. Carels and K. Hollick Chipman

Every year when our family's perennial garden starts blooming with the colours of spring, the perennial crop of backyard trampolines predictably pops up in our local big box and hardware stores. After long Canadian winters, parents are understandably anxious to get their kids outside again, and what better lure than a new piece of recreational equipment that is sure to attract all the neighbourhood friends?

Unfortunately, the attractiveness of recreational equipment such as trampolines and swimming pools can create insurance coverage problems for homeowners who choose to bring them onto their property. Homeowners' insurance policies may even have restrictions or exclusions for this sort of equipment because of the liability hazards they present.

Despite the known health benefits of trampolining (in particular, cardiovascular fitness), The American Academy of Pediatrics, the Canadian Pediatric Society, the Canadian Academy of Sport and Exercise Medicine, and Alberta Health Services have all gone so far as to recommend that trampolines NOT be available for use at homes, schools or playgrounds. Regardless of these position statements, however, the sales of backyard trampolines have continued to soar, as has the popularity of indoor trampoline parks.

How can homeowners with trampolines try to protect themselves? First, make absolutely sure to advise your insurance company of the trampoline, and ensure your policy includes coverage for this particular risk. Secondly, the Canada Safety Council has provided a safety-tip sheet for backyard trampolines that is worth reviewing, and making a household commitment of strict adherence.

This may not be enough however, because of the incredibly strong lure this kind of equipment poses to young children. Even if a child does not have permission to use a homeowner's trampoline (or has been expressly told they are NOT allowed to use it), the simple fact that one is accessible on a property can expose an owner to liability. Section 13 of Alberta's Occupiers' Liability Act, RSA 2000, c. O-4, for example, has a special provision that prescribes a high duty of care owed to child trespassers.

The 1985 Alberta Court of Appeal decision of Houle v. Calgary 1985 ABCA 153 (CanLII) illustrates just how onerous the duty owed to child trespassers can be. In Houle, the City of Calgary was found to be wholly liable for injuries sustained by an 8 year old boy who managed to climb over a 10 and a half foot fence surrounding an electrical power substation. The curious child apparently figured out that a cross-plank reinforcing the bottom of the fence gave him an extra 22 inches of lift when combined with a boost from his 10 year old brother. Once he cleared the fence, he came into contact with a live wire and sustained serious electrical burns which ultimately cost him his left arm, just below the elbow. The infant plaintiff was awarded $213,958 in damages (over $430,000 indexed to 2015).

In light of this high duty of care and liability risk, trampoline owners may think it clever to have friends and neighbours sign waiver forms to protect themselves from lawsuits in the event someone's child does gets hurt. However, the 2009 Supreme Court of British Columbia case of Wong v. Lok's Martial Arts 2009 BCSC 1385 (CanLII) found that a martial arts studio's waiver form was unenforceable against an injured child plaintiff, even though the boy's mother had signed it as part of his registration. Allthough this specific case is only binding on BC courts, the decision may be persuasive in other jurisdictions with similar legislation to the Infants Act RSBC 1996, c. 223. At paragraph 60 of Wong, Justice Willock explains that the Act does not permit parents to release a child's claim for damages after the claim arises, and applied that same rationale to prohibiting a parent from waiving the child's right to a claim before it arises. In Alberta, s. 4 of the Minor's Property Act prescribes that settlement of a minor's claim requires a Court Order and the approval of the Public Trustee. In order to obtain that approval, the Court must be satisfied the settlement is in the best interests of the child.

In the absence of an effective mechanism for signing away a child's right to sue for bodily injury damages, parents may also be faced with "parental indemnity agreements" as an alternative to a waiver form. The idea behind such an agreement is that parents will agree to indemnify (essentially reimburse) a property owner for any damages paid to their child arising from injuries sustained in the designated activity. Some provinces, however, have specific legislation, such as s.4(5) of the Alberta Minors Property Act, SA 2004, c. M-18.1, that renders such agreements void. Although such an agreement has not been tested in a Canadian court, the Ontario case of Stevens v. Howitt 1969 CanLII 322 (ONSC) suggests they would not be upheld, as they appear to be contrary to public policy in favour of the protection of infants.

The decision to acquire and install a backyard trampoline is not one to be taken lightly. Given the exposure to liability for childhood injuries, it is important to consider whether or not you, as the owner, are prepared to diligently supervise and accept responsibility for the safety of all children who decide to climb on and go for a jump - whether they have your permission or not.

This is a high burden, and one that is often fumbled, as the 1994 case of 12 year old Tara Poirer illustrates. The circumstances leading up to Tara's injuries play out in countless Canadian backyards every years: diligent early attention to supervision and enforcement of rules grows increasingly lax as time goes by. Ms. Poirer's broken arm resulted in damages of approximately $24,000.00 in 2015 dollars. A childhood cervical spine injury has the potential to exceed the limits of many homeowners' liability policies.

If you have a child who has been seriously injured in a trampoline accident, there may be compensation available to them, even if you signed a waiver and/or indemnity form before their injury.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Cynthia P. Carels
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions